PRACTICE NOTE
“Case to Answer” Determinations
This Practice Note has been issued by the Council for the guidance of
Practice Committee Panels and to assist those appearing before them.
Introduction
Article 26(3) of the Health and Social Work Professions Order 20011 provides that,
where an allegation is referred to the Investigating Committee, it shall consider, in
the light of the information which it has been able to obtain and any representations
or other observations made to it, whether in its opinion, there is a ‘case to answer’.
The ‘realistic prospect’ test
In deciding whether there is a case to answer, the test to be applied by a Panel,
based upon the evidence before it, is whether there is a ‘realistic prospect’ that the
HCPC will be able to establish at a hearing that the registrant’s fitness to practise is
impaired.
That test (which in some proceedings is also known as the ‘real prospect’ test) is
relatively simple to understand and apply. As Lord Woolf MR noted in Swain v
Hillman2:
“The words ‘no real prospect of succeeding’ do not need any amplification, they
speak for themselves. The word ‘real’ distinguishes fanciful prospects of
success… or, as [Counsel] submits, they direct the court to the need to see
whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”
Applying the test
In determining whether there is a case to answer, the Panel must decide whether, in
its opinion, there is a ‘realistic prospect’ that the HCPC (which has the burden of
proof)3 will be able to prove the facts alleged and, in consequence, that a Panel
1 SI 2002/254
2 [2001] 1 AllER 91
3 That burden of proof only applies to findings of fact. Whether those facts amount to the statutory ground and
constitute impairment is a matter of judgement for the Panel conducting the final hearing CRHP v. GMC and
Biswas [2006] EWHC 464 (Admin).
which heard the case at a final hearing would determine that the registrant’s fitness
to practise is impaired.
The Panel only needs to be satisfied that there is a realistic or genuine possibility (as
opposed to a remote or fanciful one) that the HCPC will be able to establish its case.
The test does not require the Panel to be satisfied on the balance of probabilities or
call for substantial inquiry, but the Panel still needs to be consider the case carefully.
It is for the HCPC to prove the facts alleged, not for the registrant to disprove them.
Wrongly concluding that there is a case to answer is not in the public interest. It is
unfair to the registrant concerned and diverts regulatory resources from the
protection of the public.
In reaching its decision, a Panel:

should recognise that it is conducting a limited, paper-based, exercise and not
seek to make findings of fact on the substantive issues;

may assess the overall weight of the evidence but should not seek to resolve
substantial conflicts in the relevant evidence.
Resolving substantial conflicts in the available evidence, such as deciding which of
several differing versions of events is correct is not a task which can be undertaken
by an Investigating Committee Panel. However, the mere existence of such a
conflict does not mean that there is a case to answer. Even if there is conflicting
evidence, it may have no real bearing on the outcome of the case. If a case to
answer decision is made on the basis of such a conflict then the Panel must explain
the significance of that conflicting evidence.
In deciding whether there is a case to answer, Panels need to take account of the
wider public interest, including protection of the public and public confidence in both
the regulatory process and the profession concerned.
The test applies to the whole of the allegation, that is:
1. the facts set out in the allegation;
2. whether those facts amount to the ‘statutory ground’ of the allegation (e.g.
misconduct or lack of competence); and
3. in consequence, whether fitness to practise is impaired.
Each of these elements should be carefully considered, in a step-wise manner.
In the majority of cases, the evidence will relate solely to the facts and, typically, this
will be evidence that certain events involving the registrant occurred on the dates,
and at the places and times alleged.
It will be rare for separate evidence to be provided on the ‘statutory ground’ or the
issue of impairment, as these are matters of judgement for the Panel. For example,
does the factual evidence suggests that the service provided by the registrant fell
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below the standard expected of a reasonably competent practitioner or that the
registrant’s actions constitute misconduct when judged against the established
norms of the profession.
In reaching that decision the Panel may have regard to the HCPC Standards of
Proficiency or Standards of Conduct, Performance and Ethics. However, the Panel
must remember that a case to answer decision can only be made on the basis that
fitness to practise is impaired. Simply establishing that the facts appear to breach
those Standards is insufficient.
Impaired fitness to practise
In deciding whether there is a realistic prospect that fitness to practise is impaired
Panels should consider the nature and severity of the allegation.
Registrants do make mistakes or have lapses in behaviour and the HCPC would not
be enhancing public protection by creating a ‘climate of fear’ which leads registrants
to believe that any and every minor error or isolated lapse will result in an allegation
being pursued against them.
Determining, on the basis of a limited, paper-based exercise, whether there is a
realistic prospect of establishing impairment can sometimes be difficult. A useful
starting point for Panels is to consider whether the HCPC’s case includes evidence
which, if proven, would show that the registrant does not meet a key requirement of
being fit to practise, in the sense that the registrant:

is not competent to perform his or her professional role safely and effectively;

fails to establish and maintain appropriate relationships with service users,
colleagues and others; or

does not act responsibly, with probity or in a manner which justifies the
public’s trust and confidence in the registrant’s profession.
A presumption of impairment should be made by Panels in cases where the
evidence, if proven, would establish:

serious or persistent lapses in the standard of professional services;

incidents involving:
o harm or the risk of harm;
o reckless or deliberate acts;
o concealment of acts or omissions, the obstruction of their investigation,
or attempts to do either;

sexual misconduct or indecency (including any involvement in child
pornography);
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
improper relationships with, or failure to respect the autonomy of, service
users;

violence or threatening behaviour;

dishonesty, fraud or an abuse of trust;

exploitation of a vulnerable person;

substance abuse or misuse;

health problems which the registrant has, but has not addressed, and which
may compromise the safety of service users;

other, equally serious, activities which undermine public confidence in the
relevant profession.
A finding of impairment is a finding that, based on prior events, there are on-going
concerns about a registrant’s ability to practise his or her profession, either on a
restricted basis or at all. Consequently, Panels should recognise that impairment is
unlikely to be found in cases relating to:

relatively minor issues, where the registrant has acknowledged and has
insight into any failings and where local resolution or other remedial action has
been taken;

employment issues which do not compromise the safety or well-being of,
service users, such as lateness or poor time keeping, absence from work or
personality conflicts;

consumer complaints where there is no abuse of the registrant-service user
relationship, such as complaints about minor differences in the pricing of
goods or services.
Review and amendment of allegations
In considering whether there is a case to answer, Panels should consider each
element of the allegation, to see whether there is evidence to support the facts
alleged and whether those facts would amount to the statutory ground and establish
that fitness to practise is impaired. Panels should also consider allegations ‘in the
round’ to ensure that they strike the right balance in terms of the case which the
registrant must answer.
In doing so, the Panel may need to amend or omit elements of an allegation. As
allegations are drafted at an early stage in a dynamic investigative process, it is
important that Panels give critical scrutiny to the drafting of allegations put before
them, to ensure that they are a fair and proper representation of the HCPC’s case
and fit for purpose.
If a Panel varies or extends an allegation to a material degree, the registrant
concerned should be given a further opportunity to make observations on the revised
allegation before a final case to answer decision is made.
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Further guidance on the drafting of fitness to practise allegations is set out in the
Annex to the HCPC policy document “Allegations: Standard of Acceptance”.
No case to answer
A decision that there is ’no case to answer‘ should only be made if there is no
realistic prospect of a finding of impairment being made at a final hearing, for
example, because there is insufficient evidence to substantiate the allegation or the
evidence, even if found proved, would be insufficient for the final hearing Panel to
make a finding of impairment.
Panels should not make decisions on a ‘no smoke without fire’ basis. If there is a
realistic prospect of the facts being proved and the statutory ground being
established, but no realistic prospect that impairment will be found, then the case
should not proceed further. However, in cases where that issue is in genuine doubt,
Panels should adopt a cautious approach at this stage in the process and resolve
that doubt by deciding that there is a case to answer.
April 2013
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